Acknowledgments

Funded by the Domestic and Sexual Violence Prevention
Office, Human Services Department, City of Seattle,
through VAWO, Arrest Programs Grant, 98-WE-VX-0028, by the
King County STOP Grant (Prosecution), 2000-WFVX-0020,
VAWO, Office of Justice Programs, and by the Horizons
Foundation.

This report was only possible because of the many
people who provided information, guidance, data,
consultation, editing, proofreading and support. Below is
a partial list of those who helped. We apologize to anyone
we inadavertently omitted. Many thanks to
everyone who contributed.

For their generous and knowledgeable help with this
project, special thanks to Sue Osthoff and Andrea Bible of
the National Clearinghouse for the Defense of Battered
Women, and to the contributors who were victim-defendants
in the King County region and were willing to share their
stories.

This report benefited from the information shared
during several teleconferences convened by the Battered
Women's Justice Project in 2001 and 2002.

Article Permission to Reprint

Permission to Reprint or Adapt the Contents of "Victim Defendants: Responding to Domestic Violence in Seattle and The King County Region"

The contents of this publication may be adapted and
reprinted with permission from the King County
Coalition Against Domestic Violence. Any adaptation or
reprinting must be accompanied by the following
acknowledgement:

This material was adapted from the King County
Coalition Against Domestic Violence's publication
entitled "Victim-Defendants: An Emerging Issue in
Responding to Domestic Violence in Seattle and the King
County Region," prepared by Meg Crager, Merril Cousin
and Tara Hardy.

Introduction and Background Information

We were separated but he just decided to come over.
He's American. I was new to this country and didn't know
the law. He just walked in one night. He said he had come
to pick up the kids. I told him I already had plans with
the kids. He got very angry. He was calling me "Bitch,"
and cursing at me. He is 6'6". He's in the Marines and
he's very strong. I started to go upstairs. He threw me
hard into the railing. I hit his leg and tried to push him
away.

He called the police immediately. I was scared. My
English was not good. I could not explain what was going
on. The police came and asked me what happened. I said I
had slapped my husband. I asked, "Can I explain, through a
translator?" The officer said, "No, your English is fine."
It was summer and it was hot. I had a T-shirt and shorts
on. No shoes. The officer said, "Turn around." Then he
cuffed me in front of my son. I said, "Can I have my
shoes?" The police said "No." My son was three. He saw
everything.

They took me to jail without my shoes. There was a
dirty floor, there was blood on the floor, somebody had
peed on the floor. I was there barefoot. I was very
worried about my son. In his memory something very bad
happened. I felt like garbage. For all my life, it will be
very sad. I will never forget it. - Tatyana

In King County, Washington, community and system-based [1]
advocates throughout the region have expressed concerns
that an increasing number of domestic violence survivors
are being arrested and charged with domestic
violence-related crimes. Survivors in this situation are
often referred to as "victim-defendants." This study was
initiated by the King County Coalition Against Domestic
Violence to investigate and respond to these concerns. The
project was supported by Seattle's Domestic and Sexual
Violence Prevention Office through an Arrest Policies
Grant, by the King County STOP Grant (Prosecution), and by
a grant from the Horizons Foundation.

The focus of our study is domestic violence defendants
who are also victims of ongoing abuse by an intimate
partner. For clarity, we use the term "domestic violence
survivor" for the person who is experiencing abuse, and
"batterer" for the person who is responsible for the
ongoing pattern of violence and coercive control. As the
majority of survivors of domestic violence are women, this
report focuses on women. However, our goal is to provide
information that can help increase access to justice and
support for all domestic violence survivors who are
accused of committing DV-related crimes, men as well as
women.

Over the past two decades, numerous efforts have been
made at the federal, state and local levels to increase
safety and justice for domestic violence survivors and
criminalize domestic violence. These efforts include
domestic violence-related legislation, policies, protocols
and training programs, and development of specialized
domestic violence units within city and county
governments. The King County region is nationally
recognized for its many domestic violence-related programs
and training projects, which are described in Section 4.
If a significant number of DV survivors are being arrested
and charged with DV-related crimes in the region, this
specialized criminal justice response, which the local
advocacy community has supported, should be carefully
reexamined.

We know from our interviews, our experience, and from
national research that some domestic violence survivors do
use violence against their battering partners (as
discussed further in Section 1.3). Some use violence in
self-defense, but are inappropriately arrested when the
context of self-defense is either not recognized, or not
acknowledged or documented by law enforcement. There are
survivors who are arrested because of false accusations by
their batterers. Other survivors initiate illegal acts of
violence against their battering partners and are
appropriately arrested. Those who are convicted are often
sentenced to complete batterer intervention programs,
which are not appropriate for survivors. There are many
negative impacts of arrest and conviction that compromise
the safety of survivors.

This report contains information for practitioners and
policy-makers in criminal justice and community-based
agencies who share our goal of ensuring safety, justice,
and support for domestic violence survivors who commit
domestic violence-related crimes. Many of the issues we
identified in the King County, Washington, region are
reflected in other articles and studies, and are likely to
be relevant to other jurisdictions around the country. Our
hope is that this report will increase awareness for
readers that there are domestic violence survivors among
those domestic violence defendants who are arrested,
prosecuted, and convicted, and that these defendants have
unique safety concerns and service needs. We have provided
some concrete recommendations for strengthening our
domestic violence response throughout the system, so that
ideally those survivors who use violence in self-defense
or are falsely accused are not arrested, those who are
arrested receive vigorous legal defense and comprehensive
services, and those who do commit domestic
violence-related crimes and are convicted or plead guilty
do not receive the same sentences as those domestic
violence defendants who are batterers.

Scope of the Study

There were four key questions we wanted to answer
through this study:

To what extent are domestic violence survivors being
arrested and charged with domestic violence-related
crimes? Has there been an increase?

Why is it happening?

What are the impacts on survivors?

What can be done?

To answer these questions staff gathered information
from the following sources:

A review of the related research literature, and
consultation with researchers and practitioners who are
investigating and responding to the issue in other states
and cities around the country.

Available local data from criminal justice and
community-based domestic violence agencies.

Informal interviews with thirteen women who were
arrested and charged for domestic violence-related crimes
in the King County region and who reported experiencing
ongoing abuse in their intimate relationships.

A review of a small set[2] of case files from local
jurisdictions in which each party had been identified by
the police as the defendant in at least one incident and
the victim in at least one other incident (These cases
were not connected with the women who were
interviewed).

Input from local law enforcement officers, jail staff,
public defenders, prosecutors, judges, corrections and
probation officers, community and system-based advocates,
and batterer intervention providers.[3]

The report contains the following sections:

Introduction and Background Information: provides some background information
about the definition of domestic violence, its prevalence
in the US, and a brief summary of research on the
differences between men's and women's use of violence.

Survivors of Domestic Violence Arrested and
Charged with Domestic Violence Crimes: An Issue of Concern
Nationally and Locally: provides a brief summary
of available information from other states and counties
identifying and analyzing the increase in women arrested
for domestic violence-related crimes. To analyze the
problem locally, staff reviewed the following sources:

Data on misdemeanor and felony domestic
violence-related bookings in the King County Department of
Adult and Juvenile Detention for all police agencies in
the County.

Data from the Seattle Police Department's Domestic
Violence Unit on "switch" cases, i.e. those cases where
each member of the couple had been identified by the
police as the defendant in at least one incident and the
victim in at least one other incident.

Data from the King County Community Services Division
compiled from women receiving services at community-based
agencies for domestic violence survivors.

Results of an informal survey conducted by the
Northwest Network, a Seattle-based agency that serves
lesbian, gay, bisexual and transgendered domestic violence
survivors.

A review of a sample of "switch" case files from the
Seattle City Attorney's Office and the King County
Prosecuting Attorney's Office.

Impacts of Arrest, Charges, and Conviction
on Domestic Violence Survivors: briefly
summarizes some of the impacts on survivors from national
literature and from domestic violence survivors in the
King County region who contributed to this report. The
thirteen women who were interviewed for this report were
referred to staff by local shelter and transitional
housing programs, community advocacy and legal service
programs, or were participants in a "victim-defendant"
group. Interviews were informal and were conducted either
in person or by phone. Excerpts from these interviews are
in italics throughout this report. The names and
identifying details of the survivors were changed.

Responding to Domestic Violence in King
County: describes some of the specialized
domestic violence services in the region that could
collaborate to address the issue of
"victim-defendants."

The Challenges in Responding to Domestic
Violence Survivors Arrested and Charged with Domestic
Violence-Related Crimes in the King County
Region: describes some the reasons key informants
gave as to why survivors are being arrested and charged,
and describes some challenges faced by staff in criminal
justice and community-based agencies. Input from law
enforcement officers, jail staff, public defenders,
prosecutors, judges, corrections and probation officers,
community and system-based advocates, and batterer
intervention providers was included in this section.

Recommendations: suggests some
revisions to policies, procedures, training,
community-based services, and state statutes that
could decrease the number of domestic violence survivors who
are arrested after acting in self-defense or because they
are falsely accused, and are misidentified as the primary
aggressor, hold accountable the battering partners of those
domestic violence survivors who are arrested for acting in
self-defense, and help increase appropriate intervention, services, and
support for those domestic violence survivors who are
correctly identified as the defendant in the specific
incident, but are the victim of ongoing abuse in their
relationships. Staff incorporated information compiled from local and
national practitioners and researchers to develop
recommendations.

Domestic Violence: Definition and
Prevalence

Popular conceptions of violent acts and those who
commit them often reflect the notion that this is
mindless, incomprehensible, unpredictable and unpatterned
behavior enacted by the alcoholic, the mentally unstable,
or the socially desperate. Such notions are less
uncomfortable and less challenging than the notion that
violence might be functional, intentional, and
patterned…If violence is seen as
intentional acts undertaken in order to achieve ends that
are deeply embedded in the circumstances of daily life, it
becomes an issue for all of us, may effect anyone, and is
about daily life.[4]

Battering is comprised of a complex and often dangerous
pattern of ongoing behavior that one person in an intimate
relationship uses to dominate and control their partner.
In addition to illegal violence and threats, batterers use
a variety of non-criminal forms of abuse against their
victimized partners, including social isolation, control
of family finances, constant criticism, degradation,
humiliation, threats to take custody of the children from
the victimized partner, and many other tactics.[5] The
batterer has a deep personal knowledge of the survivor's
lifestyle, needs, and vulnerabilities, and unlimited
access to the survivor, and the survivor's children,
friends, and family members. The survivor is often
terrified of the batterer, and cannot speak openly about
this fear. For these and other reasons, domestic violence
is often a very challenging crime for the criminal justice
system to address.

Several national studies have determined that the
majority of domestic violence survivors are women and the
majority of batterers are men. The National Violence
Against Women Survey (NVAWS),[6] interviewed 8,000 US women,
and 8,000 US men about their experience as victims of
violence. This study found that:

Women experience more intimate partner violence than
men: nearly 25% of surveyed women and 7.6% of surveyed men
said they were physically assaulted and/or raped by a
current or former spouse, cohabiting partner, or a date at
some point in their lifetime. Based on these national
statistics, approximately 220,000 female and 66,000 male
residents of King County will be victims of violence by an
intimate partner at some point in their lives.

Women are more likely to be injured by an abusive
partner than men. Forty-one percent of women who were
physically assaulted by an intimate partner were injured
during the most recent assault, compared with 19.9% of the
men.

Most intimate partner victimizations are not reported
to the police. Only one-quarter of physical assaults,
one-fifth of all rapes, and one-half of all stalkings
perpetrated against female respondents by intimates were
reported to the police.

The NVAWS describes prevalence of domestic violence in
the general population. Other studies have investigated
the impact of domestic violence and criminal justice
interventions of specific populations.

A study of 150 women in a maximum security prison in
New York State[7] found that 75% had experienced severe
physical violence by an adult intimate partner. Another
study by the Bureau of Justice Statistics[8] found that 57%
of female prisoners in state prisons and 40% of female
prisoners in federal prisons reported that they had been
physically or sexually abused before serving their
sentence. Most of the women who were abused (61% in state
prison and 66% in federal prison) reported that their
abusers were their current or prior husbands or
boyfriends. By contrast, 16% of male prisoners in state
prison and 7% of male prisoners in federal prison reported
abuse. Most of these men were abused by family members.
Only 3-7% reported abuse by wives, ex-wives, or
girlfriends.

Women of color are disproportionately represented in
the US prison system. Nearly two-thirds of the women
confined in local jails and state and federal prisons are
women of color.[9] At year-end 2000, Black, non-Hispanic
women were three times as likely to be incarcerated in
state or Federal prisons than Hispanic women, and six
times more likely to be incarcerated than white
non-Hispanic women.[10] As a result of institutionalized
racism, the criminal justice system in the US has
generally provided women of color with less protection
than it provides to white women.[11] Based on the overall
disproportionality of women of color who are incarcerated
in the US, it is likely that women of color are also
disproportionately represented among
victim-defendants.

In lesbian, gay, bisexual, and transgender (LGBT)
communities, the estimated rate of domestic violence is
20-35%, depending on the definition of domestic violence
used. According to a study by the National Coalition of
Anti-Violence Programs,[12] efforts to address domestic
violence in these communities are hampered by many
obstacles, including:

Poor or inconsistent response by law enforcement, as
police officers are likely to view violence between
partners of the same sex as mutual or consensual
abuse.

Lack of accessible and sensitive services in the
community, including lack of access to emergency shelter,
medical treatment, financial assistance, and legal
services that are available to heterosexual battered
women.

Survivors' fears of being outed: the abused partner may
fear that disclosing the violence will endanger his or her
relationships with family, friends, coworkers and
others.

Survivors from communities of color and LGBT
communities are especially vulnerable to arrest if
responding officers fail to investigate the larger context
in which violence has occurred.

Domestic violence can result in homicide. Since 1976,
more than 30,000 women have been killed by their current
or former intimate partners in the US. Between 30-50% of
all female homicide victims are killed by their current or
former male intimate partners. Less than 4% of male
homicide victims are killed by an intimate partner.[13] Many
studies have shown that women who kill their intimate
partners do so in self-defense. In Washington State, over
300 domestic violence-related fatalities occurred between
January, 1997 and August, 2002.[14] Data from domestic
violence homicides highlights that battering is very
dangerous. Given this reality, if for some survivors
arrest limits access to the criminal justice system, we
are concerned about the impact of arrest on their
safety.

Domestic Violence Survivors Who Use
Violence Against their Partners

A woman who picks up a knife or throws heavy objects at
her partner when he is approaching her, or holds a knife
to his throat while he is asleep, would be considered the
initiator of the violence if we view these acts stripped
of their contexts. However, if we find out that in the
first two situations he was screaming obscenities at her
and she recognized the gestures that preceded physical
abuse, while in the last one the woman had been severely
battered for over 15 years, it may change our
understanding of the cases.[15]

This report focuses on domestic violence survivors who
use violence against their battering partners. Some women
do use violence to control their partners, but research
has shown that this is a small percentage of women.
Survivors (most of whom are women) do use violence in
their relationships, but their purpose is different from
that of batterers. Survivors use violence in self-defense,
respond proactively to protect themselves, and to
retaliate against a long history of abuse.[16]

There is a body of research that asserts that women are
just as violent as men in intimate relationships. However,
critical reviews of this literature found that its
proponents counted individual acts of violence, and failed
to account for the context in which the acts of violence
occurred.[17] They did not include the motives of each partner
for using violence, the rates of initiating violence, or
the physical or psychological consequences of the violence
to each partner.[18] Several other studies from clinical
settings looked at couples where both the man and the
woman were using violence.[19] They found that while the
number of violent incidents committed by men and women
appeared to be equivalent, more women suffered injuries.
Women were more severely injured than men and were more
likely to seek medical attention for their injuries.

A review of the literature on motivations for
perpetrating partner violence (see Hamberger and Guse,
below) found that

"Women in clinical samples predominantly report using
violence for purposes of self-defense and retaliation for
prior violence. They inflict less injury and experience
more fear. Men, in contrast appear to be motivated to use
violence to dominate and control their partners and
inflict more injury and fear."

Dasgupta[20] interviewed 32 women who were participating in
an educational or treatment program for abusers. Many
women had acted in self-defense, or to try to stop an
escalating pattern of aggression. All the women in the
study admitted to having physically assaulted their
partners, but none of them expressed a motivation to
terrorize or subjugate men.

The researchers Dobash and Dobash[21] describe the context
of men's violence against female intimate partners as
follows:

Violent acts [by heterosexual men] occur within a
context of conflict, intimidation, coercion and hostility.
Once used, violence facilitates men's ability to control
their partner through various forms of intimidating
behavior as well as through subsequent acts of violence.
The woman's life begins to alter in many ways. She may
restrict her movements and suppress her
opinions… At this point, women can be
controlled through fear and anticipation as well as
through direct action.

It is this context that often makes domestic violence
very difficult to sort out in a brief conversation with
each of the parties at the crime scene. In a study of 122
men who used violence against their female partners, the
Dobashes found that men tend to describe their own use of
violence by focusing on what the woman did to "cause it."
They minimize, shift blame, and deflect responsibility for
the violence. By contrast, women who are survivors of
violence tend to blame themselves, minimize the extent of
their injuries, or remain silent about the violence out of
fear or shame.

These differences are significant for first responders
and others who are making arrest and charging decision in
domestic violence cases. As described in the Illinois
State Police Academy's Training on "Quality Arrest
Decisions at Domestic Violence Incidents," failure on the
part of responding officers to identify the context in
which the violence occurs can:

When a domestic violence survivor has been accused of
committing a domestic violence-related crime, it is
important to investigate and record the larger context in
which this crime has occurred. In determining this
context, it would be helpful for officers to determine,[22]Who is fearful of whom? Who is seeking to stop the
violence? Who is seeking to avoid punishment? Who is at
risk of future harm? Specific recommendations for
strengthening primary aggressor determination are listed
in Section 6. When officers and prosecutors are
knowledgeable about the complex dynamics of domestic
violence, they are more likely to be able to identify
which party is the batterer and which party is the
survivor in the relationship. This information may help to
guide some arrest and charging decisions.

One day I had been outside talking with some
friends and when I came in, he was mad cause he doesn't
like me talking to them. I just wanted to get out of the
house because I knew what was coming. I grabbed my
backpack and headed for the door. He blocked my
way.

He's 6'1" and I'm 5'4". I tried to push him out of
the way. He wanted to keep arguing and fighting. He wanted
to keep me there. So I started pushing him to get past
him. I just wanted to leave. He hauled off and slugged me
in the face. Then he threw me on the couch and punched on
me. I tried to get up, and he started slugging me on my
back. My kids were in the room, watching the whole thing.
He was smacking me around the living room. He threw me
into the desk. I was on my back, pinned into the desk. I
wanted to get free so I grabbed him by the throat, and
left scratches on his neck. He let go of me. I picked up
the phone and dialed 911. He grabbed it and hung up. When
the officers got there, he told them that I had been
smoking marijuana, and that I had assaulted him. He showed
him the scratches on his neck, and I was arrested. -
Kate

Mandatory arrest and pro-arrest policies were
implemented in several states in the US to increase the
likelihood of a more consistent criminal justice
intervention in domestic violence cases. Prior to the
passage of these laws, the policy of many law enforcement
agencies nationally was to avoid making arrests in
domestic violence cases. Even when arrests were made,
domestic violence cases were rarely prosecuted.[23]

There are currently no national studies that
demonstrate an increase in the number of domestic violence
victims arrested for domestic violence-related crimes.
Recent studies[24] describe an increase in the number and
percentage of women arrested for domestic violence
offenses in several states around the country. This is
significant, because existing research on the prevalence
of domestic violence indicates that the majority of
domestic violence survivors are women (as described
above). Anecdotal reports, and some initial studies
indicate that many of the women arrested for domestic
violence are domestic violence survivors.

After the implementation of mandatory or pro-arrest
policies or laws, the percentage of women arrested for
domestic violence crimes increased[25]

in Connecticut from 11% in 1987 to 18% in 1997.

in California, from 5% in 1987, to 17% in 1999.

in Boulder County, Colorado, from 12% in 1997 to almost
25% in 1999.

in Concord, New Hampshire, from 23% in 1993, to 35% in
1999.

in a Minnesota county from 13% in the first year after
implementation of mandatory arrest to 25% in the second
year.

The mandatory arrest law was passed in Washington State
in 1984.[26] Data on the arrest rates of women for domestic
violence crimes in Washington State are not available, as
the State Patrol does not track domestic violence-related
arrests by sex.

A 2001 study[27] evaluating the impact of mandatory arrest
in New York City found that the arrest of domestic
violence survivors was a significant problem which fell
into two patterns: 1) dual arrest, where both the batterer
and survivor were arrested, and 2) retaliatory arrest,
where survivors were arrested as a result of an
exaggerated or false complaint filed by an abuser, usually
in retaliation for measures that the survivor took to
protect herself or her children. The authors point out
that "both the quantitative and qualitative data supported
the possibility that women who experienced retaliatory
arrest were partnered with potentially dangerous and
manipulative batterers who are learning to use the law to
their own advantage."

As part of an ongoing multi-site research project about
women arrested for domestic violence, Miller[28] interviewed
37 criminal justice and social service providers in three
Delaware counties, including police, defense attorneys,
prosecutors, probation officers, treatment providers and
shelter staff. Three themes emerged from her interviews,
all three of which were also described at least in part,
by participants in this King County, Washington, study
(See Section 5).

Mandatory Arrest/Lack of Context:
Despite the increasing arrests rates of women, none of the
respondents felt that women's use of violence was
increasing. They stated that women's motives in using
violence differed from men's motives, and that most of the
time, women were trying get men to "stay away." They
attributed this increase to changes in police policy, in
that police were trained to automatically make an arrest
on all domestic violence calls, rather than use their
discretion. The police focus on the act of violence and
not the context in which it occurs.

Manipulation of Criminal Justice System by
Domestic Violence Perpetrators: Respondents
indicated that the increase in domestic violence-related
arrests of women may be attributed to greater awareness on
the part of their male perpetrators of how to use the
criminal justice system to their advantage. All of the
respondents who worked with male perpetrators reported
that the men in treatment tell each other, "Get to the
phone first." Many believed that the police did not
take time to thoroughly investigate incidents, but tended
to believe whichever party made the 911 call. This finding
was also suggested by our review of cases in King
County.

Changes To and Experiences With the Criminal
Justice System: Respondents in this study
explained that police felt overburdened with excessive
paperwork related to domestic violence cases and for that
reason may be desensitized to the intricacies of intimate
partner violence. In some cases police "took the easy way
out" by arresting both parties. Respondents also noted
that women were unfamiliar with the court process, and
were eager to get the case over with and return home.
Women were encouraged to plead guilty, and many women
accepted a guilty plea without understanding the
consequences of having a record.

Although dual arrest does not seem to be a significant
concern in the King County, Washington region, many of the
issues brought up by the respondents in Miller's study
were echoed by respondents in this study, as described in
Section 5.

In communities around the US, criminal justice and
community-based agencies are beginning to recognize and
address the problem of domestic violence survivors who are
arrested for domestic violence-related crimes. Some of
these responses are described below in the
Appendix A.

Domestic Violence Survivors Arrested
for and Charged with Domestic Violence Crimes: An Issue in
King County

I'll never call
911 again. I learned that the justice system does not work for me. I had
photos taken of the bruises on my chest, arms and back.
But I didn't take the case to trial. I didn't get a chance
to be proven innocent because my 12-year old daughter was
subpoenaed to testify against me in court. I pled guilty
because I didn't want her to have to testify. And I wanted
to get out of jail to be with my kids. - Trina

The domestic violence laws of Washington State were
intended specifically to increase safety and justice for
domestic violence victims as described in the Revised Code
of Washington (RCW) 10.99.010:

Intent: The purpose of this
chapter is to recognize the importance of domestic
violence as a serious crime against society and to assure
the victim of domestic violence the maximum protection
from abuse which the law and those who enforce the law can
provide. The legislature finds that the existing criminal
statutes are adequate to provide protection for victims of
domestic violence. However, previous societal attitudes
have been reflected in policies and practices of law
enforcement agencies and prosecutors which have resulted
in differing treatment of crimes occurring between
cohabitants and of the same crimes occurring between
strangers. It is the intent of the
legislature that the official response to cases of
domestic violence shall stress the enforcement of the laws
to protect the victim and shall communicate the attitude
that violent behavior is not excused or
tolerated.

Included in this law are requirements for officers to
make a mandatory arrest in all domestic violence incidents
where there is probable cause, and to arrest the primary
physical aggressor. While the requirement to arrest the
primary aggressor seems to have minimized the potential
problem of dual arrests in the King County region, correct
identification of the primary aggressor seems to be a
significant challenge in some cases.

In response to questions asked for this report,
representatives from local law enforcement, prosecution,
defense, probation, corrections and community-based
advocacy and batterer intervention agencies all agreed
that in the King County region, many domestic violence
survivors are being arrested and charged with domestic
violence crimes. Reports of individual domestic violence
survivors and case reviews also indicate that it is an
issue (as described in Section 3 below).

Available Data from the King County
Region

The arrest decision sometimes depends on how the
officer feels. If the survivor has no visible marks and
the batterer does, the officer might say, "I'm just taking
the person with the visible mark. The court can sort it
out." That's what happened to me. - Lucinda

There is no comprehensive data set for the region that
can answer the question, "What is the number
of domestic violence survivors being arrested and charged
with domestic violence crimes?" Each police
agency maintains its own arrest records, each City
Attorney's office maintains its own prosecution records,
and each court keeps its own case files. With one
exception,[29] none of these agencies directly records the
prior history of victimization of the parties who are
arrested and charged. Even if a total number of
individuals who were identified as both victims and
defendants in domestic violence incidents were available
from police and court records in the King County region,
it would not accurately capture the number of domestic
violence survivors arrested for domestic violence-related
crimes. Survivors who have never reported their own
victimization to the police but are arrested themselves
would not be identified in the victim-defendant
category.

However, the information available suggests that there
is a significant and increasing number of domestic
violence survivors being arrested and/or charged with
domestic violence-related crimes in the King County
region.

The King County Department of Adult and Juvenile
Detention (DAJD) provides the most comprehensive regional
data set on all types of crimes, as that agency books
suspects from all police jurisdictions in the County.[30] A
comparison of the number of domestic violence-related jail
bookings for adult female inmates between 1990 and 2000
demonstrates an increase, from 588 in 1990, to 1065 in
2000. Conversations with the screening supervisor and
staff for the King County DAJD suggest anecdotally that
many of these women are survivors of domestic violence.[31] A
comparison of bookings for male inmates for the same
years, shows an increase of from 3374 to 3702.

Table 1. Domestic Violence Bookings

1990

% Total

2000

% Total

% Increase

Females

Males

Total

588

15

1065

22

81%

3374

85

3702

78

10%

3962

100

4767

100

18%

Source: King County Department of Adult and Juvenile Detention

Data provided by the Seattle Police Department's (SPD)
Domestic Violence Unit allowed for a retrospective search
for "switch" couples, that is, couples where each party
had been identified by the police as the defendant in at
least one incident and the victim in at least one other
incident. In 2000, SPD filed incident reports on 3,634
couples with crimes of domestic violence, where the
violence was between intimate partners (IPV).[32] Of these
couples, 857 (23.5%) had one or more additional incident
report(s) filed by SPD between 1995 and 2000; 820 were
heterosexual couples, and 37 were same-sex couples. Of the
couples with two or more incidents, 187 of the
heterosexual couples and 12 of the same-sex couples had
cases in which each party had been identified by the
police as the defendant in at least one incident and the
victim in at least one other incident.

The King County Community Services Division (part of
the County government) funds domestic violence agencies
that serve survivors. Staff from this division compiled
data from women receiving services in 15 community-based
agencies serving domestic violence survivors between
1995-1999. Of 10,000 women served by these agencies, 6700
women reported having contact with law enforcement related
to domestic violence. Of these, nearly 500 women reported
that they were arrested as the suspect in the domestic
violence incident. Screening protocols are in place at all
of these agencies to ensure that clients meet specific
service criteria. Services are provided only to those
identified as domestic violence survivors.

The Northwest Network of Bisexual, Trans, Lesbian &
Gay Survivors of Abuse conducts an in-depth assessment
with everyone seeking services at that agency. Those who
are identified as survivors are provided services, and
those who are identified as batterers are referred out to
batterer treatment services. The agency director reports
that in 1996, staff recorded that fifty callers who were
assessed as domestic violence survivors reported that they
had contact with law enforcement as a result of a domestic
violence incident. Thirty-eight of these callers
(approximately 75%) reported that they had been identified
as the primary aggressor and arrested in the incident.

Between 1990 and 2000, there has been a significant
increase in the number of women being booked in jail on
DV-related charges, and based on anecdotal information, we
are concerned that a many of these women are survivors of
domestic violence.

Information from Case Reviews

For this report, staff reviewed a small set of police
incident reports where the police identified each party at
least once as the defendant, and at least once as the
victim. The following issues emerged:

In some cases, information from the previous incident
reports or from the parties could inform arrest decisions.
The following example is not an actual case but is a
compilation of information based on a pattern observed
with several couples.

David, who was both the victim and suspect in a mutual
arrest with Erica in 2000, was the suspect in a total of
six domestic violence incidents with three other women
between 1991 and 1998. No charges were filed against David
in any of these cases. In 2000, both David and Erica were
arrested as suspects in a domestic violence case. Both
parties reported to the police that the other party had
assaulted them. Viewed in the context of information from
all of the other incident reports documenting prior
incidents in which David was the suspect, it seems likely
that Erica is the survivor in the relationship and was
acting in self-defense when she allegedly attacked David.
In other cases reviewed, the batterer had a history of
assaults against women in previous relationships. However,
few of the police reports referred to this history,
although it occurred in the same jurisdiction in which the
survivor was arrested.

In some incident reports, the responding officers
documented that they had asked the parties about a prior
history of domestic violence. Few reports noted which
party was the victim and which party was the suspect in
the previous incidents. In other incident reports, there
was no information about whether or not the parties had
been asked about the history.

There are significant gaps in the information available
to law enforcement officers, both within and between
jurisdictions. In many law enforcement agencies, officers
do not have access from their patrol cars to previous
incident reports in their own jurisdiction. The incident
reports from one jurisdiction are not generally accessible
to officers from other jurisdictions. This information gap
is a concern in cases where there have been multiple
incident reports, but no charges filed (as information
about charges and convictions are available on a statewide
database). The reports from previous incidents could
potentially provide valuable background information to
inform the arrest decision.

Domestic violence cases are often very difficult to
prosecute, even in those jurisdictions that have the goal
of proceeding without the victim (often referred to as
"evidence-based prosecution"). Therefore, a batterer may
have multiple domestic violence-related incidents (for
which he may or may not have been arrested), but no
domestic violence-related charges or convictions.

Some of the batterers who are involved in "switch"
cases engage in behaviors that indicate they may be at
risk for seriously injuring or killing their partners,
based on the research identifying risk factors for
domestic violence homicide.[33] Our case review highlighted
the following behaviors of some of the abusive partners of
domestic violence survivors.

Threats to and endangerment of
children,

Violence against the survivor during
pregnancy,

A documented history of violence against a previous
partner or multiple partners,

These behaviors are all indicative of a batterer who
has the potential to kill his partner. Our case reviews
indicated that some high-risk batterers may be setting up
their partners to be arrested. After being arrested, it is
unlikely that the survivor will call the police the next
time that she is in danger, and she may have no other way
to protect herself.

Our recommendations outlined in Section 6 provide some
suggestions for addressing some of the concerns identified
in the case reviews.

Impacts on Survivors

My partner had jumped on me before and threatened
to kill me. I went to the hospital because of my injuries.
This time, I picked up a boxcutter to defend myself, I
went to jail for felony harassment and I lost everything.
They [the defense and the prosecutors] never looked at my
hospital records. They never asked me anything about what
happened. I lost my job, my apartment, my furniture, and
my car. My baby was put in foster care when he was only
six days old and I didn't see him again until he was six
months old. Now I'm considered a felon and it's going to
make it hard for me to get a job. - Paula

One of the most significant impacts of arrest for the
survivor is increased danger from the batterer. In those
cases where the batterer has successfully set up his
partner to be arrested, the batterer is able to give a
clear message that the survivor will only be further
punished if she calls 911 for help. Use of violence by
survivors often results in increased violence by
batterers. The women interviewed by Dasgupta[34] reported that
their defensive use of violence resulted in "swift
retaliation from their partners, and the escalation of the
violence they were already experiencing."

The National Clearinghouse for the Defense of Battered
Women summarized some of the impacts of arrests and
convictions on domestic violence survivors:[35]

Those who are arrested often make statements to the
police or participate in early hearings without defense
counsel, as they want to speed up the process and get home
to their children. They are often concerned about the
physical and emotional risks to their children.

Battered women face pressure to take a plea, for
several reasons. Some defense attorneys do not fully
explore the woman's legal options, and encourage their
clients to plead. Rapid resolution of the case may seem
like a helpful option, because batterers often increase
their violence and threats when their partner is a
defendant in a criminal case. Many women can't come to
court because of employment and childcare issues, or
interference by the batterer.

Arrest can result in significant financial burdens for
battered women, due to court costs, mandated services,
missed time at work, etc.

Conviction for a domestic violence crime can bar access
to critical resources and rights for survivors,
including,

civil rights, including the right to vote, to serve on
a jury, or to hold public office,

access to public housing,

welfare benefits: a conviction can affect
eligibility,

residency in the US. Conviction for certain types of
crimes can result in deportation.

Information from Interviews with
Survivors in King County

For this study, informal interviews were conducted with
13 women who were arrested for committing domestic
violence-related crimes in the King County region. These
women were referred to staff by community-based legal
service and advocacy programs, or were participating in a group for "Victim-defendants"
at the Ina Maka Family Program (described in Section 4.3).
Interviews were conducted in-person or by phone.

The women interviewed responded to the specific
questions highlighted below.

Why did you use violence?

Those women who used violence said they used it
because:

He was trying to grab my children from the car.

He kicked my dog and I wanted to protect it.

I didn't use violence but when the cops got there, I
looked mad and crazy because he had just been hitting
me.

He was blocking my way. I was exhausted, and sick of
his hours of verbal abuse. We had both been drinking. I
wanted him to get out of the way.

She was beating me with a broom stick, so I grabbed a
boxcutter to protect myself.

He was strangling me in the kitchen and I reached up
and grabbed a knife to get him off me.[36]

Sarah's description of her relationship and the
incident for which she was arrested illustrates some of
the challenges of responding effectively to domestic
violence survivors who are arrested. She did assault her
husband and she broke the law. But in the larger context
of her relationship, she is not a batterer. She is a
survivor of domestic violence.

The first time Bob hit me, my son was a year old.
We'd been married 3 years. He broke my thumb. It was a
control thing. I was confused...I
thought "That won't happen again." But for years after
that, he struck me and pushed me over and over. And my son
would try to protect me by putting himself between us.
Last summer, his sister moved out here and was living with
us. We got in a terrible fight. She watched while he
slammed me against the walls, ripped me by the hair,
pulled me out of the car when I tried to get away, and
then unplugged the phone. She just watched and didn't say
anything. He had my wallet so I couldn't go
anywhere.

I was arrested last Spring...I
don't watch what I say when I've been
drinking...This time, he'd been drinking
before he got home. He came home...We had dinner. We'd
both been drinking. We got in this verbal argument. I was
getting up to do the dishes and he wouldn't let me get to
the sink. He was blocking it with his body. He was yelling
the usual, screaming how STUPID my family is, how STUPID
my brother is. I got so angry, I hit him on the head with
a salad bowl...Afterwards, I started
putting the kids to bed. The police arrived. He said, "She
hit me, I have a bump on my head." I didn't say anything.
(I'm 5'4", I'm 114 lbs). The police handcuffed
me...the kids were watching. They
worried all night long where I was. When Bob came
to get me the next day from jail, he said, "You still
haven't said you're sorry..." -
Sarah

Sarah's husband used illegal violence against her many
times in their relationship, but Sarah never called the
police. The one time she used violence against him, he
called the police and she was arrested. Although he is the
batterer, she is the one who has an arrest record and a
conviction.

Why do you think you were
arrested?

All but one of the women reported that they were acting
in self-defense, or defending their children or a family
pet, but that the responding officers either did not take
their statement, ignored it, or didn't believe it. Some
said that the police had taken a statement from their
abusive partner first, and believed him or her. Other
responses included:

The police ignored the statement of my children who
witnessed it.

When the cops came out to our house before I kept my
mouth shut (so they didn't have information about her
history as a victim).

He (her abusive partner) lied and said I hit him.

He told them that I was using marijuana and showed them
where it was. So they believed him and arrested me for
domestic violence.

I was really afraid of the big police officer and I
froze.

He had the injury, so they arrested me.

I could not explain what was going on. My English was
not good at the time. I asked the police if I could have a
translator, and he said, "No, your English is fine."

My ex-husband is a firefighter. I called 911, but he
went out to greet them, and introduced himself. He knew
the officers. They stood outside with him, laughing and
joking. They believed what he told them.

Latonya described several incidents in which her
husband physically and emotionally abused her, stalked
her, threatened her, and used their children to try to
control her. She left the relationship, but frequently
brought their children to her husband's apartment to
visit. One afternoon she brought the children to see him,
and they got into an argument. She described it as
follows:

He was trying to grab my son. He followed me all
the way to the car, just going on about how he wanted the
kids to stay with him. He had never asked to have the kids
spend the night before. He never wanted to do anything
with the kids. I'm yelling, "get away from me!" He was
trying to take my son. I'm telling him to get away from
me. I was putting the kids in the car and he's trying to
get in. He said, "I'm going to take the kids." I pushed
him a couple of times. I locked the car. He's talking
calmly. He's making jokes about how fat I've gotten. I got
home. I was still crying, still upset. This call comes
in...someone asked me what happened in
the parking lot. It was a police officer. He was citing me
for domestic violence, for hurting my husband. He had
called and said I had assaulted him, and he had a witness
who said I was out of control.

Eventually, Latonya's case was dismissed. However, her
narrative indicates that her husband intentionally
arranged to have her arrested as part of the intensive and
ongoing pattern of his abuse against her.

Why do you think you pled or were
convicted?

Nine of the 13 women said they pled guilty to the
domestic violence charges against them. Their reasons
included,

I pled guilty because I was told that it was the only
way to get out of jail.

I couldn't afford the court costs and neither could my
family.

I didn't want my daughter to have to testify against
me.

I didn't want to be in jail for my daughter's
birthday.

The prosecutor said they'd charge me with something
worse and I'd do time in jail, so I pled guilty.

I was new to this country and didn't understand how
things work.

One of the women was convicted and served time in jail.
Two had their cases dismissed, and the other had a case
pending at the time of the interview.

What were the impacts of arrest/charges on
you?

Several of the women interviewed said that because of
their arrest they had:

Lost jobs in nursing, teaching, and/or child care, or
were afraid that they would lose their jobs or be unable
to find work.

Were concerned about the impact on their children of
witnessing the arrest,

Lacked confidence that the criminal justice system
could offer them any future protection.

Had a profound sense of frustration that they were
identified as the perpetrator, when they had been
victimized by their partners for many years.

All of the women said that they would never
call the police again if they were being
assaulted by their spouse or partner. If the response of
these 13 women reflects the experience of many other
victim-defendants, then arrest for a domestic
violence-related crime clearly closes the door to future
assistance from the criminal justice system for domestic
violence survivors. In addition, arrest and conviction can
bar access to housing, employment, and educational
resources that are essential for survivors' ability to
maintain their safety and independence from an abusive
partner, and to provide for their children.

Loss of Custody and Impact of Survivors'
Arrest on Children

The arrest of domestic violence survivors often has a
negative impact on the outcome of contested custody, and
may also have a negative impact on their children.
According to national research, many battered women face
potential loss of child custody when they leave their
abusive partner.[37] Batterers intentionally use child custody
as a way to further abuse their partners. Many
professionals, judges and others do not believe battered
women's accounts of actual abuse of herself and her
children, and accuse these mothers of "parental
alienation." This label has been used by courts in many
cases as a reason to remove custody from a woman who has
reported domestic violence. However, if a battered mother
fails to disclose the physical or sexual abuse of the
children by the father, she may be viewed as failing to
protect them, and lose custody for that reason. For
batterers who want to remove custody from their partners,
having the survivor arrested can be an effective
tactic.

The Washington statute defining restrictions on custody
(shown below) was developed to protect domestic violence
survivors and their children, but when a domestic violence
survivor is arrested, the provisions of this statute can
be used in support of removing her children from her
custody.

The parent's residential time with the child shall
be limited if it is found that the parent resides with a
person who has engaged in any of the following conduct:
(i) Physical, sexual, or a pattern of emotional abuse of a
child; (ii) a history of acts of domestic violence as
defined in RCW 26.50.010(1) or an
assault or sexual assault that causes grievous bodily harm
or the fear of such harm; or (iii) the person has been
convicted as an adult or as a juvenile has been
adjudicated of a sex offense.

Many domestic violence survivors lose custody of their
children after they are arrested. For example, Lynn lost
custody of her 2-year old son to her abusive husband.
Their case was heard in King County Superior Court. The
following information was obtained from court records and
police reports.

Lynn's ex-husband described her as mentally unstable,
said that she abandoned their son, that she has a history
of perpetrating domestic violence, and that she withheld
access to their son from him. He told the police who
responded to his 911 call that she was possessed by the
devil. He said that after they had separated she never
tried to arrange for overnight visits with their son.

Lynn reported to the court that during their marriage,
her husband would repeatedly push, hit, and shove her.

Lynn reported that he left the relationship for seven
months, and during that time, had no contact with their
son. The couple reunited, and soon afterwards, Lynn's
husband pushed her. She called the police and he was
arrested and charged with domestic violence. He was
convicted, and was ordered to complete a batterer
intervention program.

When he got out of jail, he told her that if she ever
had him put in jail again, he would kill her, or break
both of her legs.

Before his court date, he got angry and yelled at her
and pushed her. She threw a book at him and he called the
police. Lynn told them about his history of domestic
violence, but reported afterwards she was afraid to say
more because he had threatened to kill her. She was
arrested. Under a deferred prosecution, she was ordered to
participate in a domestic violence survivor's program. Her
husband took their son and moved in with his parents.

Lynn's ex-husband is a successful businessman. Lynn had
been staying at home with their son, and is now a
student.

The Court granted residential custody to Lynn's
ex-husband. She is allowed to visit her son twice a week,
and on some holidays.

It is likely that Lynn's arrest and her husband's
allegations of domestic violence and mental instability,
combined with his higher income level and greater
financial stability impacted the judge's decision to grant
custody to her ex-husband.

Up to the time she was arrested, Lynn had been the
primary caregiver for her 18-month old son. When she was
in jail, her ex-husband took physical custody of their
son, who did not see Lynn for several weeks, because she
was restricted by a No Contact Order from contacting the
father to arrange visitation. While we have no information
on the impact on Lynn's son, it is likely that he was
devastated by this sudden separation from his mother.
Extended separation from a primary caregiver has a
negative impact on most young children.

Children experience many negative impacts when their
abused parent (usually the mother) is arrested. They may
be placed in foster care while their parent is in jail or
prison. The separation from their mother may heighten
their sense of insecurity and anxiety following the
violent incident.[38] Once the survivor has been labeled as
the defendant, any future charges against the batterer may
be dropped, increasing the probability that children will
continue to be exposed to violence and associated risks in
their homes. Ensuring that the actual perpetrator is the
party who is arrested and prosecuted can help children
learn that violence against an intimate partner is not
acceptable, and that there are negative consequences for
it.

Children are profoundly impacted by domestic violence,
whether or not they are present when the violent events
occur. They may experience long-term problems with
physical, cognitive, and social development, depression,
anxiety, aggression, suicide attempts, and an enduring
belief that violence is appropriate in family and intimate
relationships.[39] Children who live in violent homes are
often survivors of physical abuse themselves. In a
national survey of over 6,000 American families,
researchers found that 50% of the men who assaulted their
wives also abused their children.[40]

Several of the women who participated in this study
reported that their children observed the violent
incidents for which the women were arrested, and witnessed
their arrest. All of these women expressed concern about
the impact on their children of witnessing both the
violence and the arrest. We would like to have additional
information on the impact of survivors' arrest on their
children.

Responding to Domestic Violence in the
King County Region

Many governmental agencies in the King County region
have prioritized the issue of domestic violence, and have
developed specialized programs to respond effectively to
domestic violence-related crimes. The region has a broad
range of community-based agencies serving domestic
violence survivors and batterers. Extensive planning and
resources have been dedicated to domestic violence
training for staff of criminal justice and community-based
agencies. Although few of the resources described below
are currently designed to address the needs of domestic
violence survivors who are identified as defendants in
domestic violence cases, the region is well-positioned to
improve the response to these survivors.

The City of Seattle and 26 cities in King County each
have their own independent police departments, City
Attorney's Offices (prosecutor), and courts.
Unincorporated King County (areas that are outside of
Seattle and other cities), and 13 contract cities are
served by the King County Sheriff's Office, the King
County Prosecutor's Office, and King County District and
Superior Courts. Some of the smaller cities contract with
the regional King County Sheriff's Office for law
enforcement services, and/or with private law firms to
provide their prosecution services. There are three public
defender agencies. Some examples of government agencies
that have developed specialized domestic violence units
and programs are highlighted below.

Criminal Justice Agencies in the King
County Region

The City of Kent: Family Violence
Unit

The City of Kent, in South King County, formed a Family
Violence Unit in 1997. This Unit is housed in one building
and consists of a specialized domestic violence unit in
the police department, two legal advocates housed in the
police department, a domestic violence prosecutor, and a
domestic violence Probation Officer. The Unit implemented
Project Red Flag to respond to high-risk domestic violence
offenders. This project has two components:

The Chronic Offender Program consists of a database of
domestic violence offenders who have five or more domestic
violence-related cases in the City of Kent, or have
exhibited potentially lethal behavior.

The Red Flag Warrant Program locates and arrests
offenders who have outstanding domestic violence
warrants.

The City of Kent also has a community-based Domestic
Violence Task Force comprised of community and
system-based advocates, law enforcement, batterer
intervention providers and others.

King County Government: Domestic Violence
Response

King County government is home to a Domestic Violence
Council, co-chaired by the County Executive, the Sheriff,
and the County Prosecutor. The County has specialized
Domestic Violence Units in the following departments:

The Sheriff's Office has a team of domestic violence
detectives to investigate misdemeanor and felony
cases.

The Prosecuting Attorney's Office has a specialized
domestic violence unit, as well as domestic violence
advocates, to assist victims with the court process in
criminal cases and in filing for civil protection orders.
The Domestic Violence Advocacy (victim-witness liaison)
program has been recognized nationally as one of the
pioneer court-based advocacy programs. Advocates from this
program refer "victim-defendants" who are survivors to
community-based domestic violence agencies.

King County District Court, which handles misdemeanor
crimes for unincorporated King County, has a specialized
Domestic Violence court. This court consolidates all the
domestic violence cases into domestic violence calendars
that are heard by judges who have training and experience
in domestic violence. District court also has
specially-trained probation officers to monitor domestic
violence offenders.

The staff of Family Court Services, housed in King
County Superior Court, conducts court-ordered evaluations
in divorce and disputed custody cases where there are
allegations of domestic violence. The social workers on
staff have training in the dynamics of domestic violence
and how to assess for the primary aggressor.

The King County Department of Adult and Juvenile
Detention employs staff to screen every suspect who is
booked into the jail. As part of the screening, staff runs
a booking history, and if there are concerns that the
suspect is a domestic violence survivor, they also run a
history on the alleged "victim" in the current case to see
if he has previously been booked. When there are concerns
about the suspect, the screening interview is sent to the
domestic violence advocates in the Prosecuting Attorney's
Office. These advocates inform the prosecutor that the
suspect may be a domestic violence survivor. The screening
supervisor notes that the interviews must be carefully
worded so as not to suggest innocence or guilt on the part
of the suspect.

The City of Seattle

The City's domestic violence efforts are coordinated
through the Domestic and Sexual Violence Prevention Office
in the Human Services Department, and the domestic
violence Council, which is co-chaired by the Chief of
Police and the Director of Human Services.

The City of Seattle has developed specialized domestic
violence units within each of its criminal justice
agencies.

The Seattle Police Department has a team of domestic
violence detectives who conduct follow-up investigations
on both misdemeanor and felony cases. SPD has a Victim
Support Team comprised of volunteer advocates who support
victims at the crime scene.

The Seattle City Attorney's Office has a Domestic
Violence Unit comprised of prosecutors, system-based
advocates, and support staff. Prosecutors review police
reports which may result in the filing of misdemeanor
charges of domestic violence or child abuse. Advocates
assist victims through the criminal justice system,
discuss safety planning, and make referrals to other
programs for additional assistance. Each time the office
receives new police reports, staff checks the database to
determine whether either party has been the defendant or
victim in a previous domestic violence case in the City of
Seattle. The unit maintains historical files on each
defendant, so that in cases where the parties were
involved in a previous case, staff has access to the
relevant history within the City of Seattle. This practice
can help inform filing decisions, and is especially useful
in victim-defendant and same-sex cases.

Seattle Municipal Court has domestic violence court
calendars, including a specialized calendar for reviewing
requests to lift No Contact Orders. The Probation
Department houses a specialized Domestic Violence
Probation Unit. The staff of this unit have extensive
domestic violence training, and follow some specific
procedures for monitoring domestic violence offenders.

Since 1998, the City's successful applications to the
Violence Against Women Office Arrest Program's grant have
made available $4.6 million in enhancements to the
regional domestic violence response.

Domestic Violence Training

There have been numerous training efforts in the
region, including:

The Violence Against Women Act STOP
Grant: This federal grant funds training and
equipment for law enforcement officers and prosecutors on
responding to domestic violence and sexual assault, as
well as advocacy services. Training topics for officers
have included investigation and evidence collection in
domestic violence cases, and identification of primary
aggressor. With input from officers from several different
agencies, the Law Enforcement training project has
developed model protocols for responding to domestic
violence cases. The protocols have been provided to all
the law enforcement agencies in the County. The
prosecution component of the grant has funded staff from
several prosecutors' offices around the King County region
to attend national conferences on a variety of issues
related to prosecuting domestic violence cases, and to
bring trainers to the Seattle/King County region.

Greater Puget Sound Domestic Violence
Conference: This annual conference is funded by
the City of Seattle, King County, the City of Tacoma and
the King County STOP grant. It has provided training for
community- and criminal- justice based staff on a variety
of topics, including recognizing and documenting
strangulation and stalking crimes, working with domestic
violence victims with disabilities, domestic violence in
the workplace, and many other topics.

These young ladies are paying a price because they
don't want to get hit anymore. They are abused and
assaulted over and over, and when they finally decide they
are going to defend themselves, they get punished for it.
- Pauline Little Owl, Seattle Indian Health
Board.

In the King County region, there are currently two
types of services offered to domestic violence survivors
charged with domestic violence crimes:

advocacy-based counseling and support through agencies
that serve domestic violence survivors,

All of the agencies that serve domestic violence
survivors offer access to advocacy, safety planning,
access to shelter, housing and childcare, and other
supportive services to all clients, including domestic
violence defendants. The following agencies reported
offering a service component that is focused specifically
on addressing the needs of domestic violence
defendants.

Asian Pacific Islander Women and Family Safety
Center

The Safety Center provides individual assessment to
women who are domestic violence defendants, and explores
the context in which they used violence. The Safety Center
works with those who are assessed as the victim. For those
women who are domestic violence defendants, the Safety
Center provides information about the use of violence and
its consequences, and asks women to explore other
non-violent alternatives to safety. They also encourage
women to explore root causes of their use of violence, and
how this relates to the violence and abuse against
them.

New Beginnings for Battered Women and Their
Children

New Beginnings offers individual advocacy and support
groups to battered women charged with domestic violence
crimes. Staff provides specific information on how to
gather evidence for a defense attorney, and what to expect
if the case proceeds. In some cases, the advocate talks
directly with the woman's defense attorney.

The NW Network of Bisexual, Trans, Lesbian and
Gay Survivors of Abuse

The Network has developed a nationally-recognized
assessment tool to assist with identifying the batterer in
a violent relationship. For survivors who get services
through the agency, Network staff directly address the use
of violence through an open discussion and an exploration
of value systems. Staff assists survivors in avoiding
arrest by helping them understand the legal definition of
self-defense, exploring options to using violence, and
explaining the criminal justice response to domestic
violence.

There are many other agencies in the region that serve
domestic violence survivors from a broad range of cultural
communities. These include the Abused Deaf Women's
Advocacy Service, Chaya, which serves South Asian Women in
crisis, Consejo Counseling and Referral Service which
serves survivors from Mexico, Central and South America,
the Refugee Women's Alliance which serves survivors from
12 different language communities, and the Seattle Indian
Health Board. In addition, there are several
community-based legal service programs that serve battered
women.

Programs Offered in the King County Jail:
Salvation Army's Catherine Booth House, and Seattle Indian
Health Board

Staff from these two community-based programs provide
domestic violence education groups to women incarcerated
at the King County Department of Adult and Juvenile
Detention. The groups offer information about safety
planning, awareness of batterer tactics, the impact of
domestic violence on children, educating domestic violence
survivors that they may get arrested for defending
themselves, and self-esteem building. Facilitators
encourage women to go to shelter, support groups and/or
counseling when they get out of jail.

Batterer Intervention Programs

In Washington State, batterer intervention programs are
governed by the Washington Administrative Code,[41] which
outlines specific requirements that programs must follow
in order be State Certified. These requirements are
intended to promote effective intervention to batterers,
and include:

Focusing the treatment on ending the perpetrator's
physical, sexual and psychological violence, and holding
the perpetrator accountable for the violence.

Notifying the victim of the perpetrator's participation
and progress in the program, providing the victim with
information about community resources, and assisting the
victim in safety planning.

Obtaining releases from the perpetrator to exchange
information with the victim and children, with probation
and the court, child protective services, and other
individuals and agencies.

Requiring the perpetrator to participate in treatment
for a minimum of twelve or more months, including a
minimum of 26 weekly group sessions, and monthly contact
with the program until the 12-month period is
completed.

While all of these requirements are appropriate for
holding batterers accountable, they can be dangerous to
survivors, as discussed below.

The WAC also includes exceptions for those who have a
history of victimization:

A treatment program must consider issues relating to a
participant's prior victimization when designing each
treatment plan. The program must consider the
appropriateness of domestic violence victim services in
lieu of perpetrator treatment for a participant who
presents an extensive history of prior victimization.

There are more than 30 State Certified batterer
intervention programs in the King County region.
Therefore, when a domestic violence survivor is ordered to
batterers treatment in the region, the service she
receives will depend on the individual practices of the
agency she attends.

Some programs will require her to enroll in the
year-long batterer intervention program, while others will
conduct a comprehensive assessment and if they determine
that she is a domestic violence survivor will:

Refer her to an agency that serves survivors, or

Require her to complete a program that is designed
specifically for female offenders, or

Tell the court that she doesn't need any services.

There are a few programs in the region that are
specifically designed for domestic violence survivors who
are court-ordered to domestic violence treatment. The Ina
Maka Family Program at United Indians of All Tribes offers
a structured group program to domestic violence survivors
who have pled guilty to or been convicted of domestic
violence-related crimes. Staff conducts a detailed
screening per the WAC, and documents that each participant
has a history of victimization. The unique group
curriculum includes topics related to understanding the
origins of violence, types of abuse and their impacts, the
impact of victim-defendant status, healthy coping skills,
understanding oppression, and other relevant topics. Staff
of the King County Coalition Against Domestic Violence
visited this group twice and found the group culture to be
positive and supportive to participants.

Those survivors who are required to attend a batterer
intervention must participate in treatment that is
intended to stop a person from committing an ongoing
pattern of abuse and to increase victim safety.
Participation in this type of program can further endanger
a domestic violence survivor. For example, when programs
notify the alleged victim (in the situation of a
victim-defendant, the "victim" is the real batterer) of
the survivor's participation in treatment, he can learn
where and when he can find her. One social worker
participating our study described a survivor who was being
stalked by her batterer every time she attended her
court-ordered batterer intervention program. Mandatory
participation in batterer intervention for survivors can
also provide opportunities for a batterer to sabotage the
survivor's compliance with the court order by interfering
with her attendance, or reporting false allegations of new
acts of violence.

Domestic violence survivors are not batterers, even
when they have used violence proactively. While the
content of a relevant program for female offenders may be
helpful to some women, the "Batterer" label written into
the court order is inaccurate, and stays in her court
file. It can be used by the batterer to humiliate her, to
threaten her, to contribute to her loss of custody, and
ultimately to deny her any legal protection from further
abuse.

The Challenges: Responding to Domestic
Survivors Identified as Suspects or Defendants in Domestic
Violence-related Crimes in the King County
Region

To compile information for this report, staff conducted
individual interviews and informal focus groups with
representatives of local criminal justice and
community-based agencies. Respondents included
representatives from law enforcement, detention,
defenders, prosecution, court-based advocacy, judicial
officers, probation, corrections, agencies serving
domestic violence survivors, and agencies serving
batterers. Respondents unanimously agreed that the arrest
of domestic violence survivors is an issue in the King
County region. Some of the key reasons they gave for why
survivors are being arrested are listed below.

Batterers are good at knowing how to use the system.
This problem is most common with "frequent fliers,"
batterers who have been through the system and know how to
set up the survivor to get arrested. They often assault
their partners and then pretend to be the victim when law
enforcement shows up. For example, a Seattle Police
Department lieutenant referred to a case where the
batterer actually stabbed himself in order to have the
survivor arrested. The Supervising Attorney of the Seattle
City Attorney's Domestic Violence Unit noted that she has
seen instances where shortly after their release from
jail, batterers call 911 to report alleged domestic
violence crimes by their partner although there are no
additional witnesses and or supporting evidence. In some
cases the batterer will stop the physical violence so that
he doesn't get arrested, but will use other threatening
tactics to cause his partner to react or act in
self-defense. Unlike the batterer, she often does not know
the system.

In some cases, the appearance or behavior of the
parties affects the arrest decisions police make. For
example, in some cases, the survivor appears to be the
defendant because she is angry, frustrated, afraid, or
seems uncooperative. Many batterers are manipulative and
act like shocked victims. Police find the batterer more
credible and arrest the survivor.

Survivors are far more likely to be honest about their
use of violence and accept responsibility and blame. Many
survivors know that if they don't accept blame, then the
batterer will direct more violence at them.

Police may have difficulty determining the primary
aggressor due to time constraints and other constraints at
the crime scene.

Domestic violence survivors sometimes violate the law
by using violence that is not in self-defense, or by
violating domestic violence-related orders.

There is an additional gap which may contribute to the
charging and conviction of domestic violence survivors.
Because community-based domestic violence advocates have
formed strong alliances with staff in the prosecutors'
office to support survivors who are the victim in a
criminal case, there is very little communication between
advocates and the defense community. Therefore, neither
group can consistently benefit from the expertise of the
other, to the detriment of some victim-defendants.

The challenges listed below were described by the
respondents to individual interviews and informal focus
groups.

Challenges for Law Enforcement

As the first responders to domestic violence incidents,
law enforcement officers in Washington State are required
to determine whether there is probable cause for arrest,
and in cases where there is, to make the often challenging
decision of which party to arrest by determining the
primary physical aggressor.

When the officer has probable cause to believe that
family or household members have assaulted each other, the
officer is not required to arrest both persons. The
officer shall arrest the person whom the officer believes
to be the primary physical aggressor. In making this
determination, the officer shall make every reasonable
effort to consider: (i) The intent to protect victims of
domestic violence under RCW 10.99.010; (ii)
the comparative extent of injuries inflicted or serious
threats creating fear of physical injury; and (iii) the
history of domestic violence between the persons
involved.

Officers face many barriers to accessing the history of
the parties, including time constraints, lack of access to
criminal history databases, lack of linkages between the
various criminal history databases in the region, and the
survivor's reluctance (for many valid reasons) to disclose
previous documented and undocumented incidents. The
information available to responding officers through a
brief investigation of that single incident is in some
cases insufficient to correctly identify the primary
aggressor.

Contributors to this study from six[42] police agencies in
King County identified the following additional challenges
in identifying the primary aggressor:

Agency policies and officer workloads may result in
time constraints that discourage or prevent officers from
conducting in-depth interviews, talking to witnesses, and
accessing existing documents which would help to sort out
which party is the primary aggressor.

Officers have no access or limited access to criminal
history databases at the time of arrest, which limits
their ability to access the documented history of domestic
violence (if any) between the parties.

Some officers interpret the mandatory arrest law to
mean that someone must be arrested at every domestic
violence incident. Many officers, supervisors, and
administrators do not believe that they are allowed to use
their discretion and not make an arrest.

Officers are concerned with the possibility of civil
liability if they fail to make an arrest. This concern
seems to be endorsed by local agency policies, based on
informal conversations with officers and managers.

Officers may ask questions using specific legal terms
that survivors don't connect with their own experiences.
For example, a survivor may not identify her experience of
abuse as an "assault," so the officers do not get the
necessary history from her for determining the primary
aggressor.

Language barriers: responding officers don't have
access to or don't use interpreters at the crime scene.
When the batterer, the children, or other family members
interpret, they may intentionally misidentify the survivor
as the primary aggressor, or simply lack the knowledge of
some of the terms being used by the officers. Therefore
the officers may not get the information they need, or may
get misinformation.

There are many factors that may influence officers'
decisions about which party to arrest, including demeanor
of the parties, whether one of the parties has substance
abuse issues, and whether one of the parties has
outstanding warrants, or other arrests or convictions
unrelated to domestic violence.

Challenges for Defense
Attorneys

In the King County region, there has been little
collaboration to date between community-based domestic
violence advocates and the defense community. As described
earlier, community-based advocates have a long history of
collaboration with several of the prosecutors' offices in
the region in criminal cases where the survivor is the
victim. Therefore, there is no established communication
channel between community-based advocates and defense
attorneys. Defenders generally defend batterers in
domestic violence cases. There is inconsistency in defense
attorneys' level of knowledge of and access to specific
information that could be helpful to defendants who are
domestic violence survivors.

Some challenges to the defender community include:

Limited understanding about the dynamics of domestic
violence.

Lack of knowledge/training about how to get a history
of the defendant's experience of abuse and how to
integrate this into her defense.

Lack of time to investigate cases, access medical
records, talk to court- or community-based advocates or
spend time talking with the defendant.

Lack of communication with community and system-based
advocates on these cases.

The adversarial nature of the court process prohibits
prosecutors and defenders from consulting and working
together to identify possible victim-defendant cases.

In some jurisdictions, defenders have no information
about the case until they get to court for
arraignment.

As a result of the information gaps listed above,
victim-defendants who contributed to this study felt that
their defenders did not make clear to them the pros and
cons of taking the case to trial, or the consequences of a
guilty plea. Several reported that their defender had
encouraged them to plead guilty at arraignment. It is not
clear whether this practice is unique to victim-defendant
cases. However, many domestic violence survivors may have
valid defense claims and it is important these be
carefully explored.

Challenges for Prosecution

Three jurisdictions in King County[43] have specialized
domestic violence prosecution units, staffed by trained
deputies. However, throughout the region, there are still
many challenges for prosecutors in cases of domestic
violence survivors who are arrested and/or charged with
domestic violence crimes.

There is no mandatory training for prosecuting
attorneys on the dynamics of domestic violence, or on
assessing for the primary aggressor in domestic violence
cases.

In most jurisdictions, there are no protocols in place
for screening for the survivor status of domestic violence
defendants, or procedures for prosecuting these defendants
when they are identified.

Time constraints may make it difficult for the
prosecutor to compile all the relevant information, such
as criminal history and police incident reports from other
jurisdictions, medical reports, information from civil
protection orders, and other information from outside
agencies in a timely fashion.

In most prosecutors'offices, the case histories of the
two parties in a case do not get linked. Without this
linkage, the deputy assigned to the case may fail to
recognize that the current defendant was a victim in
previous cases, and that the present case may therefore
warrant further investigation.

System-based domestic violence advocates are not
allowed to communicate with victim-defendants, even those
for whom they have previously advocated, as departmental
policies require them to advocate for the victim in the
current case, and to have no contact with the defendant.
While victim-defendants have public defenders or in some
cases private attorneys, they often have no one to
advocate for them who understands the unique challenges
and dangers of their situation.

There is no formalized way for prosecution staff to
access information about victim-defendants from sources
such as community-based domestic violence agencies.[44]

Challenges for the Courts and
Probation

There are few specialized domestic violence probation
units in the King County region. Probation officers may
not be familiar with the needs and safety concerns of
survivors who have been convicted.

There is a lack of formal protocols within probation
offices to assess whether a domestic violence offender has
a history of victimization, and a lack of procedures for
alerting the court when probation staff identifies an
offender who has that history.

Many courts do not ask probation to conduct domestic
violence-related pre-sentence investigations, so
sentencing recommendations may not reflect a
victim-defendant's history of victimization.

Domestic violence survivors who are convicted or plead
guilty to domestic violence-related crimes may be
sentenced to complete a batterer intervention program,
participate in a support group for domestic violence
survivors, or to complete a mental health assessment, and
follow recommendations. There are limited community-based
resources for victim-defendants to which probation
counselors can refer when a court orders any of these
services.

Challenges for Community-Based Advocacy
Programs

Community-based advocacy programs could benefit from
opportunities to discuss ways to talk about survivors' use
of violence, and ways to support survivors who use
violence. The issue is extremely complex.

There are few supportive services offered in the
community specifically for "victim-defendants."

There is a limited amount of information provided to
domestic violence survivors through community-based
agencies about the risks and consequences of arrest, what
to expect when 911 is called, and other information that,
in some cases, could help to prevent arrest.

Few advocates maintain linkages to jail staff or
defense attorneys who therefore may not know where to
refer a victim-defendant for supportive services in the
community.

Advocates may lack information/training about the court
process, or the impact of arrest and conviction on
victim-defendants.

Agencies are overburdened and are facing budget cuts
and reduced resources.

From an advocacy perspective, there are many practical
and philosophical challenges around court-ordering a
domestic violence survivor to participate in any kind of
domestic violence services. If she was acting in
self-defense, or to protect her children, the court order
is, in effect, punishing her for defending herself. If she
was using violence proactively, or in retaliation for
abuse, the order to batterer treatment can be problematic,
as discussed in Section 4.2.

The advocacy community is currently engaged in a
conversation about this difficult and complex issue. It
would be useful for this community to develop some
consensus on this issue, with input from
victim-defendants. While judges in the region are
committed to crafting appropriate sentences, the existing
options that are currently available to judges are all
problematic for many individual survivors, and for the
advocacy community.

It is contradictory for a domestic violence advocacy
program to accept a mandate for a domestic violence
survivor to participate in a support group. Domestic
violence advocacy programs are required by the Washington
Administrative Code to "focus on empowerment of the
client through reinforcing the client's autonomy and
self-determination." Mandating participation in any
program contradicts this requirement for reinforcement of
autonomy and self-determination.

Any agency accepting a court-mandated client must
provide notice to the court that the client is complying.
Some courts require information on the quality of the
client's participation in services. For agencies that
serve domestic violence survivors, reporting to a court on
an individual client's participation conflicts with the
confidentiality policies that are in place to protect all
program participants and staff. However, if an agency does
not report to the court, the survivor may be viewed as
"out of compliance" and required to serve jail time. This
conflict can create a dilemma for agency staff who want to
protect the confidentiality of all survivors who receive
services, and at the same time want to support individual
survivors who are court-mandated to services.

In the King County region, judges in some courts order
victim-defendants to complete a mental health assessment
and complete mental health treatment as part of the
sentence. These orders are problematic in cases where the
survivor has no related mental health issues, because they
imply that the woman's status as a domestic violence
survivor is in some way connected with a mental health
problem. The rate of mental illness among domestic
violence survivors is no higher than that of the general
population, and mental illness on the part of the survivor
is generally not the cause of the violence. Few mental
health providers have specific training in assessing for
domestic violence or in providing supportive services.
Like the order to complete batterer treatment, the order
to complete a mental health assessment can be used against
the survivor in a number of ways, for example, it may
contribute to her loss of child custody.

Although none of these options are completely
appropriate for domestic violence survivors, they are all
being ordered and provided. While domestic violence
survivors who do commit crimes must experience some
consequence from a criminal justice perspective,
sentencing options that have no negative impacts on
survivors should be explored.

Recommendations for Responding to
Victim-Defendants

The arrest of domestic violence survivors for domestic
violence-related crimes is a concern both locally in the
King County region, and nationally. Local data and
anecdotal information confirm that there are a significant
number of domestic violence survivors being arrested for
domestic violence crimes in the King County region.
Arrest, even without conviction, often has a devastating
impact on domestic violence survivors.

There are many institutional and staff resources in
place both in the criminal justice system and the
community in King County that could contribute to
strengthening the response of the criminal justice system
to domestic violence survivors who are domestic violence
defendants, and increase the available support to these
survivors from community-based agencies.

Our recommendations were developed from a review of
promising practices compiled from national literature,
conversations with researchers and practitioners from
other cities and states around the country, as well as
discussions with local criminal justice representatives
and domestic violence advocates. Many of these recommended
practices have been at least partially implemented by some
agencies in our region.

The recommendations presented below reflect an ideal
model for responding to victim-defendants in domestic
violence cases. We know that in reality, all of the
agencies involved are working at maximum capacity in the
face of existing resource limitations and ongoing budget
cuts. We recognize that system-wide implementation of all
these recommendations may not be feasible, however, we
encourage agencies to consider the recommendations, and
implement those that are practical.

Leadership

In order to effectively reduce the number of domestic
violence survivors who are improperly identified as the
primary aggressor in domestic violence cases and to ensure
safety for those domestic violence survivors who do commit
domestic violence-related crimes, local leadership of
criminal justice and community-based agencies would need
to view this issue as a significant concern. The
department heads of each relevant agency, including the
Chief of Police, the City Attorney or County Prosecutor,
the head of the relevant public defender agency, the
Presiding Judge, the Directors of Probation and
Corrections, and leaders from community-based domestic
violence service providers would need to examine the gaps
in each local jurisdictions, and the gaps between
jurisdictions that allow batterers to manipulate the
outcome of arrests. These leaders and policy-makers would
need to lend their support to a collaborative effort to
develop a coordinated response for these cases. This
response would include comprehensive and ongoing training,
revisions in arrest, charging, and sentencing policies,
and changes to existing data systems to improve
information flow. It would require leadership from the
domestic violence advocacy community, and ongoing
coordination between staff of criminal justice and
community-based agencies, and a commitment of time and
staff resources from all agencies.

While the training, policy, and procedural revisions
suggested below may be helpful, it is unlikely that they
will remain in place unless department heads and agency
directors are willing and able to work together to
institutionalize some changes throughout all components of
the domestic violence response system.

Some key goals of this process would be to ensure
that:

Domestic violence survivors who act in self-defense are
not arrested,

Charges are dropped for those who are arrested while
acting in self-defense,

The batterers of those survivors who are defending
themselves are held accountable for their threats and/or
assaults that resulted in the need for self-defense,
and

Those domestic violence survivors who do commit crimes
have access to vigorous and appropriate defense counsel,
and supportive community-based advocacy.

Those who are convicted receive sentences that do not
compromise their safety.

Law Enforcement

In our ideal model, law enforcement agencies would be
able to give their officers the time, training, resources,
and support they need to correctly identify the primary
aggressor in more complex cases.

Practices would include:

Carefully evaluating domestic violence incidents for
self-defense.

Prioritizing accurate identification of the primary
aggressor.

Refraining from making mutual arrests in domestic
violence cases.

Using interpreters and/or the AT&T Language Line
whenever one or both of the parties don't speak English or
have limited English skills.

Recognizing exceptional work by officers in making
difficult primary aggressor determinations.

Supporting officers in using their legal discretion in
domestic violence cases where applicable under mandatory
arrest law.

Training would include:

Information about the dynamics of domestic violence and
the tactics of batterers, with information about ways that
batterers attempt to use the criminal justice system.

Ways to evaluate whether one of the parties was acting
in self-defense.

Identification of defensive and of self-inflicted
wounds.

Recognition and documentation of strangulation
attempts.

Questions that would help to determine the context in
which the crime was committed, including information about
Who is fearful of whom? Who is seeking to stop the
violence? Who is seeking to avoid punishment? Who is at
risk of future harm?).

Understanding the amount of discretion that is
available to officers under the mandatory arrest law.

Resources would include:

Access to all relevant criminal history databases and
the time and agency support to look up the related history
of the parties before making the arrest decision.

The opportunity to consider the arrest history of the
parties in the larger context of the violence in the
relationship. For example, not everyone who has been
arrested for a domestic violence-related crime is a
batterer.

Time and resources to use interpreters when
necessary.

Supervisory review of domestic violence cases with
feedback and consultation.

Assignment of follow-up detective (at agencies where
this is not routine) in cases where there are questions or
concerns about which party is the primary aggressor.

Defense Attorneys

To implement the ideal model, the defense bar would
need to train their staff, including investigators and
social workers (where applicable) in the dynamics of
domestic violence, and support them in acquiring tools for
defending domestic violence survivors charged with
domestic violence-related and other crimes. Defenders
would:

Know how to assess for a history of abuse and integrate
information from this history into the survivor's
defense.

Understand the ways in which the history of abuse is
relevant to the survivor's legal defense.

Understand the unique safety concerns of domestic
violence survivors, and how these may impact
victim-defendants' decisions about legal strategies and
service needs.

Fully assess the survivor's range of options, including
negotiation with the prosecutor when appropriate, or going
to trial (instead of taking a plea).

Help the survivor to understand and evaluate her legal
options.

Develop relationships with community-based domestic
violence advocates who can assist the defender in
obtaining relevant information, and can support the
survivor in court.

Refer survivors to community-based agencies for
advocacy and support.

One public defender agency[45] in the region has
collaborated with a community-based domestic
violence advocacy program to provide training for staff
social workers in screening all domestic
violence defendants for histories of abuse.
Whenever a history of abuse is identified, staff compiles
relevant medical and police records on the defendant, and
flags the history of victimization for the court.
Social workers consult with attorneys on these
cases. This practice can be beneficial in
identifying and improving services to
victim-defendants.

Prosecutors

Prosecutors would make domestic violence training
mandatory for all staff, where feasible. At minimum,
domestic violence training would be provided to all staff
who are trying domestic violence cases.

Staff would be required to screen for domestic violence
survivors among domestic violence defendants by:

Obtaining a complete criminal history of the parties
through all of the relevant criminal history
databases.[46]

Determining whether there are any "red flags" for a
victim-defendant case, for example when one of the parties
was the victim or defendant in a previous domestic
violence case, when the defendant is in a same-sex
relationship, is a limited-English speaker, or is female
in a heterosexual relationship. While there are male
victim-defendants, available information indicates that
the majority of victim-defendants who are DV survivors are
women. In cases when there are "flags," look further into
the case to assess whether there are any indications that
the alleged victim is actually the batterer.

Evaluating whether there is a need for additional
information about the context of the violence and the
history of the parties, and in cases where there are no
clear indicators that release of the suspect would
jeopardize victim or community safety, delay the filing
decision to allow additional time to gather information,
when appropriate.

Closely evaluate cases for potential lawful use of
self-defense, and for components of self-defense that
don't seem to rise to the level of lawful
self-defense.

In cases of self-defense, carefully consider whether
prosecuting the case is consistent with the goals of
justice. When there are some elements of self-defense,
consider integrating this information into the disposition
recommendations.

Drop charges against those domestic violence survivors
who were acting in self-defense or were not the primary
aggressor.

Encourage defense attorneys and community-based
advocates (accompanied by a defense attorney) to
communicate with the prosecutor's office about cases in
which they believe the alleged defendant to be the
victim/survivor.

Recommend appropriate sentences for those survivors who
have committed crimes, giving consideration to the
survivor's safety.

System-Based Advocates

System-based advocates, those advocates who work within
the criminal justice system, (known in some areas as
victim-witness liaisons) are not permitted to work with
defendants, even if the defendant has been identified as
the victim in a previous case, as their role is to
advocate for the identified victim in the current criminal
case. However, they can (and do) indirectly assist
domestic violence survivors charged with domestic
violence-related crimes by

Working closely with law enforcement and the jail to
identify victim-defendants.

Ensuring that law enforcement and jail staff have the
contact information they need to refer victim-defendants
directly to community-based advocates.

Flagging possible victim-defendant cases for the
prosecutor (and the defender when possible) assigned to
the case and consulting with the prosecutor about
potential safety concerns.

Courts, Probation, and
Corrections

Ideally, all judicial officers, court, probation and
corrections staff would receive training in the dynamics
of domestic violence, the tactics of batterers, and key
issues in assessing for domestic violence.

Judges would have their staff check existing criminal
histories on the parties to see how these might inform the
current case. In Washington State, judges have access to a
legislatively-mandated Domestic Violence database that is
designed specifically for judicial use.

Where resources allow, courts should order probation or
corrections (in felony cases) to conduct domestic violence
Pre-Sentence Investigations (PSI) on all domestic violence
cases. If there are insufficient resources to do this in
all cases, PSIs should be conducted on any case where the
defendant may have a history of victimization by the
alleged victim in the presenting case. The PSI should
include specific questions about the history of
victimization, and power and control issues in the
relationship.

When the case of a domestic survivor is going to be
prosecuted, judges should craft sentences that integrate
the safety needs of the individual survivor. In some
cases, judges may consider alternatives such as deferred
sentences, in which the survivor agrees to complete the
conditions of sentence, after which charges are
dropped.

Judges, and probation and corrections officers should
be aware of the risks to domestic violence survivors of
being on probation or corrections supervision. For
example, a batterer may use the probation condition as
another way to abuse the survivor by using it to threaten
her if she calls for help, by falsely alleging a probation
violation to her probation officer, or by forcing her to
commit an illegal act and then reporting it.

Batterer Intervention Programs

As most court-mandated batterers claim to be "the
victim" when they begin a batterer intervention program,
staff may reasonably become desensitized to that claim and
may have difficulty identifying court-referred domestic
violence survivors. Therefore, batterer intervention
programs should ideally

Provide training for their staff in victim-defendant
issues.

Carefully evaluate court-referred clients for
indications that they are survivors of domestic
violence.

If there are indications that an individual is a
survivor of domestic violence, programs should incorporate
into the assessment in-depth questions that help determine
which party in the relationship is engaging in a pattern
of power and control, and which party is a victim of that
pattern.

For those court-mandated clients who are domestic
violence survivors and not batterers, staff should clearly
document to the court (with the survivor's permission)
that individual is not a candidate for batterer
intervention, as she or he is a domestic violence
survivor.

Community-Based Advocacy
Programs

Community-based agencies should develop and integrate
comprehensive responses to domestic violence survivors who
are charged with domestic violence-related crimes, as
resources permit. Some areas to address include:

Acknowledge in support group and individual work that
many domestic violence survivors use violence. Advocates
can provide information that could help prevent arrest of
survivors by engaging in an open conversation about
survivors' use of violence, its impacts, and
alternatives.

Ensure that advocates have a clear understanding of the
scope and limitations of state confidentiality statutes,
so that information disclosed by survivors about their own
use of violence cannot be used against them in a criminal
or civil case.

Provide information to survivors about the criminal
justice system. Inform survivors about the domestic
violence laws, the potential consequences of arrest, and
what they can do if they are arrested.

Increase opportunities for early access to
victim-defendants through relationships with local law
enforcement and the jail.

Collaborate with defense attorneys on the defense of
domestic violence survivors. Get to know attorneys at
local public defender agencies. Define together ways in
which advocates can help defense attorneys, help the
survivor prepare for trial, and provide other forms of
support to her.

When working with victim-defendants, investigate
whether meeting bail is a constraint, particularly for
those who are charged with felonies. If so, consider a
revolving bail fund for victim-defendants.

Understand that there may be potential negative
consequences to survivor's case before sharing specific
information about a victim-defendant with staff in the
prosecutor's office. Ideally, any communication about a
specific victim-defendant's case would happen in close
consultation the defense attorney assigned to the
case.

If the survivor has an open criminal case, consult with
a defense attorney about any other legal actions, such as
obtaining a civil protection order.

In addition, the domestic violence advocacy community
should develop some consensus on what mandatory conditions
of sentence are appropriate for domestic violence
survivors who have committed domestic violence-related
crimes. Once this consensus is reached, community leaders
should work with prosecutors, defenders, and the court to
ensure that domestic violence survivors are being
sentenced appropriately.

For Discussion: Considerations for Changes
to the Washington State Statute

In order to reduce the number of domestic violence
survivors who are being arrested, there are three possible
areas for change in the language describing primary
aggressor determination. These would require additional
discussion and analysis before any attempt is made to
promote legislative change.

Adding a requirement to assess whether one of the
parties was legitimately acting in self-defense, before
making a primary aggressor determination.

Revising the existing language to emphasize the need to
consider the history of the parties from: "In making
this [the primary aggressor] determination, the
officer shall make every reasonable effort to
consider (i) The intent to protect
victims of domestic violence under RCW 10.99.010 (ii) the
comparative extent of injuries inflicted or serious
threats creating fear of physical injury; and (iii) the
history of domestic violence between the persons
involved." to "In making this determination,
the officer shall
consider..."This revision
could highlight to police agencies the need to provide
sufficient time, relevant training and access to criminal
history databases for officers who respond to DV
cases.

Many law enforcement agencies now focus on arresting
the "predominant" rather than the "primary" aggressor, to
increase the emphasis on identifying the batterer in the
relationship, that is, the person who is the most
dangerous, and most likely to cause fear and harm to the
other party.[47] The Washington State statute could be changed
from "the officer shall arrest the person who the officer
believes to be the primary physical
aggressor,"to the "predominant
aggressor."

Appendix A: Accurate Identification of the Primary
Aggressor

Communities Respond Across the US

In communities around the US, criminal justice and
community-based agencies are beginning to recognize and
address the problem of domestic violence survivors who are
arrested for domestic violence-related crimes. Below are a
few examples of responses in a variety of agencies that
focus on increasing the accurate identification of the
primary aggressor in domestic violence incidents, and on
providing services to meet the needs of victim-defendants.
This is a sample of programs, not a comprehensive
list.

Law Enforcement: Law enforcement is charged with the often-difficult
decision of determining the primary or predominant
aggressor in a domestic violence incident. To respond to
this challenge, some State Law Enforcement training
academies as well as individual police agencies are
providing officers with increased training and specific
policies and procedures for identifying primary aggressor.
Some examples include:

The California Commission on Peace Officer
Standards has included specific training on the
Identification of Primary Aggressor in all of their
Domestic Violence Training Programs.[48]

The San Diego Police Department
provides training on Primary Aggressor identification for
all new recruits. The Department has instituted a program
of mandatory training on Primary Aggressor Identification
every two years for all officers. The Police Chief and all
1200 officers committed to participating in this training.
The local police academy has incorporated primary
aggressor training at the Advanced Officer's Training
Program, which is provided quarterly, and added a
four-hour class on the Identification of Primary Aggressor
for all recruits. A veteran police officer, a prosecutor,
and a physician, who focuses on identification of domestic
violence-related injuries, teach the training.

The Colorado Springs Police Department
has a Domestic Violence Enhanced Response Team (DVERT),
which coordinates the efforts of criminal justice system
representatives, victim advocates, and staff from human
service agencies in responding to the most serious
domestic violence cases in the area. Cases are referred to
DVERT through local domestic violence agencies, the
Department of Health Services, and others. Staff from the
DVERT team compile all relevant information on criminal
history, restraining orders, and advocacy, and coordinate
efforts to promote victim safety. This information could
help to inform arrest and charging decisions, and prevent
the inappropriate arrest and charging of domestic violence
survivors. A formal evaluation of the program found that
there were improvements in collaboration, communication
and networking among agencies, improvements in services to
domestic violence survivors, and a reduction in recidivism
by those batterers on the DVERT caseload.

The Illinois State Police Academy has
instituted training on Primary Aggressor Identification
for all state patrol cadets, and law enforcement recruits.
Key to this training is a focus on the state's
self-defense case law.

At the Washington State Criminal Justice
Training Academy, all police recruits receive 12
hours of training on domestic violence issues. Topics
include an overview of the dynamics of domestic violence,
information about the domestic violence law in Washington,
investigating domestic violence cases, and collecting
evidence for successful prosecution of cases. Training on
identifying primary aggressor includes the intent of the
law, the domestic violence history between parties,
investigating claims of self-defense, and defense of
others. Recruits participate in mock incidents in which
they have to determine primary aggressor.

State police academies in Delaware, Maryland,
Louisiana, Tennessee and Texas also provide focused
training in identifying primary or predominant
aggressor.

Defense: A survivor's experience of abuse can be a strong
element in her defense. Only a few agencies have focused
specifically on defending battered women and other
domestic violence survivors.

The National Clearinghouse for the Defense of
Battered Women in Philadelphia, Pennsylvania, has
been assisting battered women charged with crimes since
1987. The Clearinghouse works with battered women charged
with any crime in which their abuse history is relevant to
their legal defense. Staff work with the defendant and
with members of the battered woman's defense team (i.e.
defense attorneys, advocates and expert witnesses), to
identify defense strategies, provide relevant case law,
locate expert witnesses, and identify support
networks.

The Women's Advocacy Project, in
Austin, Texas, is a non-profit legal services organization
that houses Battered Women Defendants' projects. This
project provides training, case planning, and technical
assistance to Texas trial lawyers who represent battered
women in criminal actions. With funding through the Texas
Bar Foundation, staff has developed a manual for Criminal
Defense Lawyers on Defending Battered Women.

Prosecution

The Crossroads Program: The Crossroads
Program in Duluth, Minnesota, was developed specifically
to respond to domestic violence survivors charged with
domestic violence-related crimes. To be eligible for the
program, victim-defendants must apply to the City
Attorney's Office. They must have a documented history of
abuse by the complaining party, and should not have any
pending or previously deferred charges or convictions
under any state laws for assault or for gross
misdemeanors. Applicants are screened by a probation
officer who looks at several different factors including:
the defendant's criminal history, her history of violent
behavior, her history of victimization by the complaining
party, the severity of the incident, the views of the
complaining party, the circumstances and motives
surrounding the use of violence, and the
victim-defendant's willingness to participate in
educational and counseling programs. The prosecutor
reviews the probation officer's findings and determines
whether the woman can enter the program. Upon completion
of all terms of the deferral agreement, charges are
dropped.

Mary Asmus, the Duluth City Attorney who developed the
program, notes that it has some limitations.[49] For example,
the requirement to have no criminal charges or convictions
excludes many domestic violence survivors who have
long-term histories of abuse. A victim-defendant who has a
documented history of abuse, but also has a criminal
history of drug-related crimes or prostitution, would be
prosecuted for the domestic violence-related crime.
Another challenge is the requirement to demonstrate a
history of victimization. Many domestic violence survivors
never report crimes committed against them to law
enforcement or to healthcare providers.

San Diego City Attorney's Office: In
order to ensure that domestic violence survivors are
prosecuted only in cases where they have clearly committed
an offensive crime, the Assistant City Attorney requires
all prosecutors to participate in extensive domestic
violence-related training including the Police Academy
training on identifying primary aggressor, a class on
strangulation in domestic violence cases, the dynamics of
domestic violence, and the impact on children. Prosecutors
are also required to visit a domestic violence shelter and
a batterer intervention class, and go on police
"ride-alongs." In addition, 1-2 domestic violence-related
courses are offered to prosecutors in the unit every
month. Senior attorneys must review all domestic violence
cases.

Domestic Violence Advocacy
Responses

The Safehouse Program in Ann Arbor,
MI, works with local police agencies and the jail to
identify domestic violence survivors who are arrested for
domestic violence-related crimes. Every time the police
arrest a woman for a domestic violence-related crime, they
page Safehouse. Safehouse uses a network of trained
volunteers who go into the jail and meet with women who
are arrested. If they determine that the woman is a
domestic violence survivor, they offer her a full range of
domestic violence advocacy services, including
consultation with her defense attorney.

State Domestic Violence
Coalitions: Domestic violence advocacy groups in several other
states and cities around the US have identified the arrest
of domestic violence survivors as a serious concern, and
are working to better understand the problem and develop
responses.

The Colorado Coalition Against Domestic
Volence: Female Defendant Task Force: Comprised of advocates from several different
organizations around the state, the Task Force is
compiling information about advocacy programs for battered
women charged with crimes. The Task Force also has a
Criminal Justice Advocacy Committee comprised of
representatives from all components of the criminal
justice system. The Task Force has found that some
jurisdictions in Colorado have a 50% female arrest rate,
while others have a 0% female arrest rate.

The New Jersey Coalition For Battered
Women: The New Jersey Coalition has a committee of domestic
violence service providers who are currently reviewing
information from member programs regarding women ordered
into their programs for 'batterers treatment.' The
Coalition has found that only a few counties in New Jersey
are getting large numbers of women accused of battering,
but most have seen a definite increase. The Coalition
reports that unfortunately, programs feel pressured to
offer either survivor or batterer treatment services to
these women. A few programs send letters back to the court
reporting that the woman is a survivor and thus not
appropriately ordered into the abusers program.

The Coalition is researching assessment tools to better
help advocates weed out any survivors from those who are
actually batterers and is working to develop some
safeguards to keep courts from ordering survivors to
batterer intervention programs. They are also planning to
develop education for judges and prosecutors on this
issue.

The Oregon Female Defendants' Task
Force: The Task Force is made up of domestic violence
advocates from around the state of Oregon who share
concerns about teen and adult women who are being arrested
for domestic violence crimes. Since 1998, they have been
gathering information and resources from across the
country. The Task Force is developing a manual for a
Coordinated Community Response to Females Charged with
Partner Abuse, a companion manual to a protocol for male
offenders developed by the statewide domestic violence
Council.

Moving Beyond Battered Women's Syndrome: A
Guide to the Use of Expert Testimony on Battering and Its
Effects. Manual produced by the National
Association of Women Judges. State Justice Institute, May
1995.

When Battered Women are Charged With Crimes: A
Resource Manual for Defense Attorneys and Expert
Witnesses, National Clearinghouse for the Defense
of Battered Women, September, 1996.

For Advocates:

Multiple articles from the National Clearinghouse for
the Defense of Battered Women.

When Women Use Force: An Advocacy Guide to
Understanding this Issue and Conducting an Assessment with
Individuals Who Have Used Force, To Determine Their
Eligibility For Services From A Domestic Violence
Agency: Erin House, Legal Advocacy Coordinator,
Domestic Violence Project/SAFE HOUSE, Ann Arbor, MI.
Battered Women' Justice Project.

Working Effectively with the Police: A Guide
for Battered Women's Advocates, by Jane Sadusky,
Violence Against Women Online Resources, revised August,
2001.

Assessment Tool, on Assessing for
Primary Aggressor. Compiled and Adapted by The Northwest
Network, 2002. Requires training in its use.

For Use in All Training
Packets:

The Impact of Arrest and Convictions on
Battered Women, National Clearinghouse for the
Defense of Battered Women, February, 2001.

When Battered Women Are Charged With
Crimes: Brief Overview and Recommendations,
National Clearinghouse for the Defense of Battered
Women.

[1] We use the term "system-based advocates" to refer to domestic violence advocates who work within the criminal justice system. In some jurisdictions, these advocates are called "victim-witness liaisons."

[2] Incident reports and case filings on 12 sets of couples for whom 8 or more domestic violence-related incident reports had been generated within a 5-year period, and 25 individual incident reports on domestic violence defendants who had been identified as the victim in previous incident reports.

[3] Input from more than 30 key informants was incorporated into this report

[5] Described in When Men Batter Women, N. Jacobsen and J. Gottman, Simon and Schuster, 1998

[6] Extent, Nature and Consequences of Intimate Partner Violence: P. Tjaden and N. Thoennes, July 2000, US Department of Justice

[7] Prevalence and Severity of Lifetime Physical and Sexual Victimization Among Incarcerated Women: A. Browne, B. Miller and E. Maguin, in International Journal of Law and Psychiatry, Vol. 22, Nos. 3-4

[27] The Family Protection and Domestic Violence Intervention Act of 1995: Examining the Effects of Mandatory Arrest in New York City: A Report by the Family Violence Project of the Urban Justice Center, 2001

[35] The Impact of Arrests and Convictions on Battered Women, National Clearinghouse for the Defense of Battered Women, February, 2001

[36] Three of the case files that were referred to us for review indicated that the survivors had picked up a knife in order to get the batterer to stop doing something to harm the survivor, her children or belongings.

[38] Children Exposed to Violence: A Handbook for Police Trainers to Increase Understanding and Improve Community Responses, L. Baker and P. Jaffe, Centre for Children and Families in the Justice System, 2002.